Appeal No. 97-0152
Application 08/157,709
when the force from the user’s weight is removed to selectively
modify the elevation or pitch of said insert relative to said
inside surface of said shoe.2
The items relied upon by the examiner as evidence of
obviousness are:
Meyer 4,756,096 Jul. 12, 1988
Shaffer et al. (Shaffer) 4,841,648 Jun. 27, 1989
Sarkozi 5,138,774 Aug. 18, 1992
(filed May 13, 1991) 3
Andresen et al. 313163 Mar. 3, 1983
German Document (Andresen)4
2The recitation in claim 1 of the bottom surface of the
sheet as “including” a layer of first fastening material is
inconsistent with the underlying specification and with dependent
claims 6 and 7 which indicate that the layer of first fastening
material covers, but is not included in, the bottom surface of
the sheet. This discrepancy is deserving of correction in the
event of further prosecution before the examiner.
3Although the instant application purportedly is a
continuation-in-part of Application 07/690,661, filed April 24,
1991, and of Application 07/407,145, filed September 14, 1989
(see note 1, supra), the appellant has not asserted that the
subject matter on appeal is entitled to the benefit of these
earlier filing dates under 35 U.S.C. § 120. We therefore presume
that the Sarkozi patent is prior art with respect to the subject
matter on appeal even though its filing date is subsequent to the
filing dates of the appellant’s earlier applications.
4An English language translation of this reference,
prepared on behalf of the Patent and Trademark Office, is
appended hereto.
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